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Date: Thu, 18 Feb 2010 07:16:00 +0000
From: New Zealand Electronic Text Centre <[log in to unmask]>
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Subject: New Zealand Electronic Text Centre
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New Zealand Electronic Text Centre
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In from the cold: orphan works
Posted: 17 Feb 2010 03:45 PM PST
http://feedproxy.google.com/~r/nzetc/~3/SP3xVw_uu5o/in-from-cold-orphan-
works.html?utm_source=feedburner&utm_medium=email
A recent JISC report, In from the Cold, contains some welcome research into
the problem of orphan works.
The problem
Orphan works are typically regarded as those in copyright where either the
author has died and no other authority responsible for granting copyright
permission can be located, or those works where the author cannot be found
or simply cannot be determined.
As can be guessed from this definition, orphan works can be problematic in
many ways for cultural institutions and others wishing to re-use such
material, whether this be republishing it in another form (online, as in
the case of the NZETC), or incorporating it into a new work.
At times, because the author cannot be determined or because the date of
death of the author is unknown, the copyright provenance of a work is
therefore not known, and those wanting to re-use the material will often
err on the side of caution by not re-using the work, instead treating it as
if it is in copyright in order to avoid possibly infringing copyright law.
And, with copyright law, there are often complications introduced into the
process of determining the copyright provenance of a given work. Although
attempts have been made to harmonise copyright law, notably with the Berne
Convention of 1886, it often differs markedly from country to country. As
one example, the copyright term in the EU generally lasts until the end of
the 70th year after the death of the author. However, in New Zealand, this
term lasts only until the end of the 50th year after death.
There are also many exceptions and special cases, including transitional
provisions which mean that the general terms do not always apply, and may
instead have to be supplanted by copyright terms of shorter or longer
duration (or no duration in some cases) depending on the nature and medium
of the work, the date of creation or publication, and numerous other
factors.
Another limiting factor in the discussion of orphan works up until now has
been the lack of research into the actual extent of the problem: how many
of a nations' cultural artifacts fall into the category of orphan works?
What impediments does this cause for those cultural organisations that wish
to re-use such works?
The findings
The JISC report is timely, as it provides some rigorous research into this
problem, albeit from a UK perspective. Amongst the observations in the
report are a number that coincide with ones that we have noticed:
A large amount of 19th century material is being digitised (because it can
reasonably be assumed that most is out of copyright). Similarly, a
reasonable amount of recently-published material is being digitised
(because it is relatively easy to identify and contact the authors).
However, most 20th century material is not being digitised, because it is
likely to be in copyright, and because much this falls into the category
orphan works. As the JISC report notes, this is leading to the creation
of "a black hole of 20th century content."
If there is any uncertainty about the copyright provenance of a given
publication, then institutions typically tread cautiously, being reluctant
to even unknowingly infringe copyright law
Although there are exceptions in copyright law allowing for re-use of
certain material in certain contexts (e.g., the "fair-dealing" provisions
in New Zealand law), because of uncertainty about how these provisions
apply in particular situations or how far they extend institutions can be
reluctant to make use of these exceptions
Due to the amount of time and resource that can be involved in trying to
conclusively determine copyright provenance with uncertain results, many
institutions choose simply to direct their resources into areas where they
can be more certain of making good use of these resources. One contributor
to the JISC report notes that "A total of 150 hours was spent by a
freelance researcher, and 152 hours was spent by British Library staff on
seeking permissions, which resulted in eight permissions being received."
In determining the scale of the problem, the report found that, in the UK:
there is a conservative estimate of 25 million works which can be
classified as orphaned, though this figure could be higher than 50 million
Of the 503 survey respondents, almost 90% found their service delivery
affected at least occasionally by the problem of orphan works, while more
than 25% noted that orphan works either frequently affect their activities
or affects everything they do.
As organisations take around half a day to trace rights for each orphan
work, there are many millions of person-days required to substantially
improve the situation under current conditions
More than a third of organisations surveyed do not have any specific
resources in place to help deal with orphan works.
As the report notes:
"The scale and impact of Orphan Works across the public sector confirms
that the presence of Orphan Works is in essence locking up culture and
other public sector content and preventing organisations from serving the
public interest. Works of little and/or variable commercial value but high
academic value and cultural significance are languishing unused."
What can be done?
Although concerned with quantifying the problem rather than concentrating
on solutions, the report does proffer some observations and recommendations:
They note that the majority of survey responses (60%) call for legislative
change
There is a need to harmonise and study efforts across Europe
More use could be made of licensing schemes
The possibility of a central rights agency or opt-in register could be
investigated
Legal certainty and safeguards regarding what is an orphan work and how it
may be re-used could be established
There is support for using exceptions to copyright law for "educational
purposes"
Stop the problem from here on through training and awareness
From the NZETC's point of view, using licensing schemes such as Creative
Commons provide a way forward for new works, as they allow authors to
specify in more detail what rights they wish to grant regarding the re-use
of their work, and remove much of the doubt created by default copyright
provisions.
The public's awareness of Creative Commons has been gradually increasing,
and initiatives such as the promotion of Creative Commons licensing of New
Zealand public sector outputs through the New Zealand Government Open
Access and Licensing framework can only be applauded, as they recognise the
additional economic value to be gained by making content as freely
available as possible, and serve to further raise the profile of Creative
Commons.
In terms of the black hole of 20th century content, the main approach we
have been taking here at the NZETC is to target those publications for
which an existing body or organisation is in a position to grant
over-arching permission for online reproduction. For example, with the
Official History of New Zealand in the Second World War and the New Zealand
Railways Magazine we were able to approach government departments which
were in a position to grant permission for these large resources.
However, we are too keenly aware that there are many smaller (and not so
small) works that are likely to languish as any copyright permissions will
rest with an individual or their descendants (presuming there are any),
whether or not they are aware of this.
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